TANF at 20: The 1996 "Welfare Reform" and its Impact, Part 3
Since 1973, some incarnation of Empire Justice Center has been fighting for low income and disenfranchised New Yorkers' rights. We've seen many changes and weathered many storms, including the so-called "welfare reform" of 1996. The advent of the federal Personal Responsibility and Work Opportunity Act of 1996 brought us the Temporary Assistance for Needy Families block grant, for better or for worse. Twenty plus years later, New York families are still living in poverty. We present to you our perspectives on TANF at 20.
Don Friedman, Senior Attorney in our Public Benefits Practice Group, continues his thoughts in his third installment.
WHAT CAN NEW YORK STATE DO?
In my previous articles, I examined the 1996 welfare reforms and assessed where things stand today, nationally and in New York State. I intended, in this third and final installment of TANF at 20, to take a forward looking view: In what ways might Congress and the Federal government improve the welfare system to make it a more humane and effective in fighting poverty? A TANF reauthorization bill introduced by a bipartisan group of Senators, despite its flaws, gave hope that some less punitive, more productive legislation might be achievable.  Then came the November elections, and I felt compelled to rethink what I could discuss that might be possible, of interest and of value. The new game plan: I’ll review what we might anticipate in the way of federal TANF legislation in the coming year(s), acknowledge that we will probably not be able to turn to the Federal government for constructive change, and then focus on what New York State can do to help fill the void.
What Action Is the Federal Government Likely to Take on TANF?
In June, 2016, Paul Ryan, the Speaker of the House of Representatives, and perhaps the most powerful voice in Congress, released a report entitled “A Better Way: Our Vision for A Confident America” (interesting choice of adjectives).  It was written by the House-created Task Force on Poverty, Opportunity and Upward Mobility. Though lacking in legislative detail, it offers a peek into the likely changes the Republican-controlled Congress would expect to make in the TANF program. Most of the news is bleak, though there are a few positive concepts and some of the rhetoric might align well with progressive perspectives.  But these hopeful signs tend to be overwhelmed by more harmful provisions, and of course, even the best of ideas are inconsequential if tax cuts and budget cuts prevent meaningful implementation. Shortly before this article was completed, the Trump administration proposed the outlines of a federal budget that would cut tax revenues and increase defense spending by $54 billion. Discretionary programs such as TANF would be the inevitable targets of the resulting spending cuts. Here are some “high”lights of the Ryan plan:
Work (Part 1)
Some pretty good rhetoric
The TANF portion of the “Better Way” report is primarily focused on work. It begins with some promising rhetoric. It quotes a state welfare official who complained that the TANF law emphasizes technical programmatic requirements rather than real individual progress. This is likely a reference to TANF participation rates, which measure whether enough recipients are “engaged” in mandated activities, without regard for whether favorable outcomes are being achieved. For years, progressives have urged Congress to replace participation rules with more meaningful measures, like poverty reduction and long-term placement in decent-paying jobs.
The TANF section also suggests that states should be accountable for helping recipients improve their employability and secure decent jobs, and observes that child care, transportation, stable housing, adequate food and consistent work schedules are important to successful employment. This could be the introduction to a progressive overhaul of the welfare system!
The actual recommendations?
The Task Force does not formulate detailed proposals, but things go downhill as the paper proceeds. Most strikingly, it repeats, in so many words, the “Work First” mantra of the 1996 reforms: a job, any job, is more effective than, for example, education-focused activities. If that was ever true, it is most certainly not true at a time where decent paying jobs increasingly require higher education and/or specialized training. The report repeatedly insists that adults on TANF who can work must work, as if that were not already the law of the land. It complains that the states are not engaging enough of the TANF recipients in work activities.
What we might expect
I would be surprised if TANF reauthorization did not include some mix of higher participation rates and the elimination of the means by which states can reduce their required level of work participation.  The conservatives will also have to resolve the tension between two competing principles. First is the impulse to be much more restrictive about the activities that can count as work participation. Second is the bias in favor of greater local discretion. A number of states, red and blue, have called for broader authority to define countable work activities. We’ll see how it plays out…
Work (Part 2)
Not strictly TANF
The preeminence of work in the “Better Way” report shows up in its discussion of some non-TANF programs. But because of the repeated reference to the TANF work rules, and the likely impact on the people we serve, they bear mentioning here.
SNAP – The report recommends that the law “insist on work for work-capable adults” receiving SNAP benefits. The discussion seems to simply restate the SNAP rule for Able-Bodied Adults Without Dependent Children  – ABAWDs – but may foreshadow even more rigorous, punitive and broadly applied work mandates.
Housing assistance – The Task Force expresses concern about the length of time that people remain in subsidized housing, and cites data to the effect that many employable residents are not working. Not surprisingly, the proposed solution: impose TANF-like work requirements, which are always accompanied by severe punishments for alleged noncompliance. Admittedly, the proposal would include help with child care, transportation and other work supports.
The Ryan Task Force speaks out on anti-poverty programs in general
I’d like to touch briefly on a number of observations and recommendations in the report that address the anti-poverty, non-profit and social services world in general, governmental and otherwise.
Incentives/“cliffs” – The paper addresses inappropriate incentives at some length. We all might agree that public benefit “cliffs,” where a small increase in earnings might result in the loss of eligibility for some critical benefit, create an incentive not to increase earnings. A robust remedy would be welcome. But the paper is also concerned about the law’s insufficient marriage incentives. The TANF law already promotes marriage and two-parent families, but one could imagine alarming new possibilities.
Non-profits – The report complains that non-profits are often rewarded for helping more clients to receive benefits, without also giving the agencies an incentive to move people off of benefits. There is no specific proposal, but there’s glaring potential for mischief here!
Effectiveness – Under the folksy title, “Pay More for the Good Stuff, Less for Everything Else,” the report bemoans the fact that federal funding too often fails to distinguish between effective and ineffective approaches. But how will “effective” be defined? The Task Force seems to suggest, for example, that extended time receiving benefits is a sign of ineffectiveness. So the federal match rate should be reduced over time to ensure that the state is invested in moving people off of benefits. This would be deeply troubling…
Program evaluation – The Task Force argues that most federal programs are not evaluated, and when they are, many are found ineffective. Certainly, a strong case can be made for evidence-based policy making. The danger is that effectiveness will be defined by policy makers who are overtly hostile to the programs they are assessing.
Waste, Fraud, Abuse – It seems reasonable that the feds should “focus support on the people who need it most,” doesn’t it? But unfortunately, this is the Task Force’s way of saying that too many recipients are wrongly paid due to fraud, waste and abuse. TANF is actually not singled out, but the report lists the major offenders, such as the EITC, which in 2015 allegedly had an improper payment rate of over 27%, or $17.7 billion.
Local control: the New York impact - The report supports more local control and flexibility in TANF program choices. That principle is too often honored in the breach. But ironically, we in New York State might distinctly benefit – or at least be somewhat less vulnerable – if Congress and the new administration delegate more authority to the states. It’s a very different story in many other states.
What can New York State do?
A disclaimer - I’ll share my thoughts here on changes in the welfare system that New York State should consider. We of course cannot be certain when or how the federal government will modify TANF laws or what the final federal budget will look like. But sadly, it is probably safe to say that constructive, beneficial change to the welfare system in the coming years is much more likely to originate at the state or local levels of government. We would, therefore, do well to consider what might be done in the Empire State. 
An informational aside - Family Assistance (FA) is New York State’s TANF program, whereas Safety Net Assistance, our other public assistance program, is purely a State creation. While federal law is controlling for TANF/FA, it has no jurisdiction over SNA. In New York, comparable policies have generally been adopted for both programs, though with some notable exceptions. In any event, this section looks at state options for change in the TANF/FA program under current federal law constraints.
And a prelude - The list that follows is by no means exhaustive. Hopefully it provides a useful sample of actions that New York State can undertake to enhance our welfare program while comporting with federal law.
The Welfare Work Rules
- Sanctions: The New York State legislature recently passed a fine law addressing sanctions for alleged work rules violations. It requires that the social services district investigate to determine the reasons for non-compliance before the sanction process is triggered, and it provides that a person can have a sanction lifted upon a showing of willingness to come into compliance. But the law only applies to New York City. Federal law mandates sanctions for non-compliance, but nothing more specific than that.  The sanction law can and should be expanded statewide.
- Two-generation programs: I am increasingly persuaded that programs that address the needs of low income parents and their children represent one optimal means of serving both generations. Programs might have to be structured in such a way that the activities in which the parents engage might be countable as work, but the endeavor is well worth the effort. 
- Career Pathways: I generally favor more forceful leadership from Albany on welfare policy. I also recognize the value of the districts – intimately familiar with the population they serve – having some latitude with regard to the work activities they assign. But it is not unreasonable for OTDA to provide guidance and ground rules regarding the activity assignments. There should be programs that take local labor market conditions into account and that adhere to best practices in the field. One example of a model that has a track record for effectiveness is the Career Pathways concept. In brief, Career Pathways programs offer a ladder of instruction and training, with multiple entry and departure points, each level offering skills training that can result in the granting of recognized credentials; many of the most effective programs include “soft” skills development. This may include training in the realm of executive function, skills that focus on flexibility, “working memory” and what is sometimes called self-regulation. 
- Households with children under 1 year: This is fully permissible under current TANF law. In New York, advocates tried for years to secure a work activities exemption for PA recipients with children under the age of one year. Initially the primary motivation was to free up child care funds for already-employed parents. But a terrific additional gain might be that the exemption would enable parents to spend more time with their infant children, and districts might offer services and programs to assist young parents.
- Access to education: Because the federal government has asserted itself aggressively in the realm of countable work activities, access to education may depend more on what happens next in Washington D.C. than some of the other recommendations made here. But there is at least the possibility that more discretion will be given to states regarding assignable activities. In any event, New York should act decisively to make all levels of education and skills development more integral components of PA work assignments. The research about the benefits, in terms of employment, retention and compensation, of every increment of quality education and training is overwhelming. For starters, making college education one of the activity options and making homework a countable activity should no longer be left to local discretion.
General Welfare Policies
- Benefit levels: A shameless plug! Federal law says nothing about TANF benefit levels in the states. A singular achievement in New York would be the enactment of the Home Stability Support program, which would vastly enhance the capacity of PA recipients to pay rent and heating bills. Please visit http://www.homestabilitysupport.com/supporters-1/, or drop me a line to join our list-serv.
- Screening for disability: Over the years, I have informally surveyed advocates around the state regarding the local districts’ treatment of people with disabilities. I have consistently been told about systemic problems in this area. Disabilities are too often not identified, and of course if the disability is not identified, then individuals are unlikely to receive the accommodations that are needed to secure benefits and that are mandated under the Americans with Disabilities Act (ADA). Federal TANF policy requires upfront disability screening, though there has been little in the way of enforcement and that is unlikely to change under the next administration.
New York’s Office of Temporary and Disability Assistance (OTDA), which oversees the state’s welfare programs, has been incredibly frustrating in its unwillingness to set forth explicit directions for the districts with regard to identifying disabilities. Under the ADA, screening must be voluntary, and there are issues that need to be worked out so that the process is not seen as coercive, but the state can certainly do a much better job in ensuring that disabilities are identified and, where appropriate, that needed accommodations are offered.
The culture of welfare administration
In the first two installments of this blog, I have decried the culture of welfare administration. In too many, but not all, districts this often create barriers that prevent people from receiving urgently needed assistance. The effect of these obstacles is to discourage, intimidate and confuse people seeking benefits. The remedies are many; they might include:
- Demystifying the application process by making sure that the rules and process are clearly and understandably communicated to clients. The duty to assist clients having difficulties documenting their PA eligibility is often honored in the breach. Workers should be trained and reminded of this critical responsibility.
- Making sure that time limits for action on applications are observed.
- Providing full access in terms of interpretation and translation services for people with limited English proficiency.
- Improving staff training, including training in the recognition of possible mental health issues.
- Zero tolerance for explicit or subtle intimidation based on disability, immigration status, or alleged fraud.
- Ensuring full access in terms of hours of service, taking into account, among other factors, clients’ possible employment or PA work assignments and other sometimes conflicting requirements.
- Significant enhancements in the ability of PA clients to conduct their interactions with the system by phone or computer. The SNAP and Medicaid programs, perhaps because they are less stigmatized than public assistance, are far ahead of PA in this arena.
Welfare law has stringent rules about resources and eligibility. But possession of some level of resources is often critical to the ability to leave welfare, and may offer a cushion against the unpredictable nature of employment. It is reasonable that people with substantial wealth should not be eligible for PA, but households with modest resources should not have to exhaust them before receiving aid. For example:
- All households should be able to possess a car, without affecting eligibility.
- The resource limits should be eliminated or substantially increased.
- Districts should not be permitted to take liens on houses for those infrequent cases in which a person in need of public assistance owns his or her home. This is one resource of value that might provide some long term protection for a family.
A brief step beyond the realm of public assistance. Child care is guaranteed by law for PA recipients who are given work assignments. But the shortage of funding for child care for working parents who are not eligible for welfare has reached crisis proportions. Thus, if a welfare recipient does exactly what the system demands of them, that they secure employment and leave the welfare rolls, they will, sooner or later, face a crisis if they are unable to secure a child care subsidy. The situation became ever more desperate when Congress wisely enacted rules to improve child care health, safety and quality, but absurdly failed to provide funding to enable the states to comply. Certainly, the provision of adequate child care funding for both the PA and the non-PA populations must be among the highest of priorities.
Coming to the conclusion of this “TANF at 20” posting, I return to the beginning, the adoption of “welfare reform.” From the start, many advocates felt that the TANF program, and the larger PRWORA legislation under which it was created, were ill-conceived, and grounded in biases about public assistance and the people who need it. And nothing about the 20 years since 1996 has changed our views. Take a look at a remarkable series of articles by Peter Germanis, who dubs himself Peter the Citizen, an “ardent conservative deeply concerned about truth in policy making and policy assessment.” I am sure we would disagree about many details, but in his article, “Making “Welfare Reform” Great Again: Five Recommendations for President-Elect Donald J. Trump,”  Germanis notes that he played a role in writing the 1996 welfare reform law, and now regretfully calls it a massive failure. He recommends that the new president not rely on sweeping anti-poverty reform packages, but rather that he encourage state flexibility but with accountability, reject block grants, emphasize work, but focus on what is realistic, reasonable and effective, and recognize that welfare dependency should be reduced, not by cutting the caseloads, but by reducing poverty. Germanis strongly believes that the 1996 reforms failed in virtually all respects. I might tinker a bit with his themes for the new administration, but considering the source, his ideas might carry considerably more weight. We can hope.
In this third installment, I discuss the prospects for the TANF program in Washington – ranging from uncertain to bleak. I then proposed a sampling of steps that New York State can undertake without conflicting with Federal law. I conclude with the hope that this not be simply an informational exercise, but that we continue to share thoughts and ideas about addressing the urgent needs of low income New Yorkers and work together to enable some of these and your ideas to become reality.
 See The Empower Act of 2016, http://www.king.senate.gov/imo/media/doc/EMPOWER%20Section-by-Section.pdf.
 The section on poverty can be found here, http://abetterway.speaker.gov/?page=poverty, with links to various formats, snapshot, fact sheet, entire document, etc.
 During the course of 2016 there was at least one potentially promising, bipartisan legislative proposal, but my fear is that such moderate initiatives will face steep resistance in Congress and the White House. See, http://www.nationalskillscoalition.org/news/blog/senators-introduce-bipartisan-tanf-reauthorization-bill-would-expand-access-to-education-and-training.
 States can currently reduce their mandated work participation rate by reducing their caseload, and also by increasing their “maintenance of effort” expenditures. For a fine brief explaining the participation rates, see Elizabeth Lower-Basch, “Work Participation Rate - TANF,” Center for Law and Social Policy, updated July 2016, http://www.clasp.org/resources-and-publications/publication-1/TANF-101-Work-Participation-Rate.pdf.
 This rule provides that ABAWDs are limited to three months of SNAP benefits in any 36-month period unless they are meeting prescribed work requirements. Issues such as adequacy of notice, availability of work options, and the accuracy of “able-bodied” determinations, makes this rule particularly problematic.
 Most of the proposals here are based on my experience and research into welfare issues. But this discussion is also specifically informed by two publications, Elizabeth Lower Basch and Stephanie Schmit, TANF & The First Year of Life – Making a Difference at a Critical Moment, Center on Law and Social Policy, October 2015; and Donna Pavetti and Liz Schott, TANF at 20: Time to Create a Program, Center on Budget and Policy Priorities, August 2016.
 45 CFR §216.14
 For more information about the two-generation approach to building family economic security, see, for example, Report by the Executive Director of the Connecticut Commission on Children, “A Two-Generational Approach: Helping Parents Work and Children Thrive,” https://www.cga.ct.gov/coc/PDFs/two-gen/2015-02-03_report_FINAL.pdf. See also a wealth of materials from Ascend - Aspen Institute, http://ascend.aspeninstitute.org/pages/the-two-generation-approach; and the Center for Law & Social Policy, http://fcd-us.org/resources/thriving-children-successful-parents-two-generation-approach-policy.
 An excellent overview of executive function can be found at the website of Harvard’s Center for the Developing Child, http://developingchild.harvard.edu/science/key-concepts/executive-function/. While this site focuses on early childhood development, the need to address executive function deficits in adults is challenging but crucial.
 Peter Germanis, November 2016. This and many other “Peter the Citizen” articles can be found at http://mlwiseman.com/?portfolio=peter-the-citizen.